Opposition Brief — Smith v. Texas

Pa ~ QRIGINAL ee

2 SEP 10 2004

No. 04-5323 (2) | ORROE OF THECUERK |

IN THE

SUPREME COURT OF THE UNITED STATES

LAROYCE LATHAIR SMITH,

Petitioner,

Vv.

STATE OF TEXAS,

Respondent.

On Petition for Writ of Certiorari to the

Court of Criminal Appeals of Texas

RESPONDENT’S BRIEF IN OPPOSITION

GREG ABBOTT GENA BUNN

Attorney General of Texas Chief, Postconviction

Litigation Division

BARRY R. McBEE

First Assistant Attorney General *EDWARD L. MARSHALL

Deputy Chief, Postconviction

DON CLEMMER Litigation Division

Deputy Attorney General

For Criminal Justice P.O. Box 12548, Capitol Station

Austin, Texas 78711

*Counsel of Record (512) 936-1400

ATTORNEYS FOR RESPONDENT

Il.

QUESTIONS PRESENTED

Whether the lower court’s decision denying Smith’s Eighth

Amendment claim under Penry v. Lynaugh, 492 U.S. 302 (1989),

should be reversed in light of Tennard v. Dretke, 124 S. Ct. 2562

(2004).

Whether the supplemental mitigation instruction submitted during

Smith’s punishment trial violated the Eighth Amendment rationale of

Penry v. Johnson, 532 U.S. 782 (2001).

TABLE OF CONTENTS

Page

RES ER ee Oe et he NER Eee a rere Ye i

SS de A anh <deiiaiicdine ckuadens ii

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I. ao a re eet duecabbaytuees ducal l

Il. Facts Relating to Punishment ............. 2.2... . 2-0-0 e cece cece eee neces 2

Ill. Direct Appeal and Postconviction Proceedings ..................-.2-0+0000005 6

i IG IEEE SAD PS RNG > MI EL oe A EOE POO 7

Il. |The Lower Court Correctly Held That Smith’s Jury Was Not Altogether

Prevented from Considering His Mitigating Evidence of Limited Mental

Capacity and Difficult Family Background in Answering the Punishment

Phase Special Issmes. .... 2... ccc cece cece cece eee e ee eeeeeeeees 8

A. Thespecial issues were constitutionally adequate vehicles for

the consideration of Smith’s mitigating evidence. ................... 8

B. This Court’s opinion in Tennard did not impugn the lower

court’s application of Penry I. .............-- cece cece e eee e eee 13

Ill. The Court below Properly Held That the Mere Submission of a

Supplemental Instruction Concerning Mitigating Evidence Does Not

Amount to per se Eighth Amendment Error Regardless of the Quality or

Quantity of the Mitigating Evidence Presented at Trial. .................. 15

CES ce ccccccnccccccscccsessesceseecesboeescineenesouvccvacsusetpe 19

~\

TABLE OF AUTHORITIES

Cases Page

Andrews v. Collins, 21 F.3d 612 (Sth Cir. 1994) 0.0.0... cece cece cece cccecucucucucuees 13

Booth v. Maryland, 482 U.S. 496 (1987), overruled on other grounds,

Payne v. Tennessee, 501 U.S. 808 (1991)... 0.0... cece cc cccccccccecuuuneeeeees 9

Boyd v. Johnson, 167 F.3d 907 (Sth Cir. 1999) 0.0... c cece cece eee ecuccceceeceees 13

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nies Gis BAG Ss, GI x. 5. oa oes sc cincscccnvcaceiuedavesaenuuencs 13

Dien Gilets GIO GE, GIR IIUED oo ono ccc ccccccccescctsccevevccesseeces 9,11

Franklin v. Lynaugh, 487 U.S. 164 (1988) 0.0... ccc ccc cece ce ceccccecececuces 9,10,12

Siete Cilia SIE GIN GIEE .. «os vc anndcecdckissexsatscadeesmeeeens 10,12

Dees: Cees GID. TI oon c ves hnviiccsessesieiensseddenseiane 11,12

Beis Ties GR TRI... 50a o5sssintecvanessssesansieeeeeee 8,9,12

ern Win SIRE: GINA «0 os oi cckcdcecssceussesteeemneeeeeee 7

Reine Giets HOSOI WE o.oo oc nnscinvcdecccccanduecesssabansnones 13

Sis Cie COUR COU. «<5. ciciocccsasssite eee 9

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Pepe: Re GIRS, SII «os. inn uciceiesciascceuseneseee .... passim

Robertson v. Cockrell, 325 F.3d 243 (Sth Cir.) (en banc),

ek ind COU TID ooo nc vc caso eekevdveecnsseeneanee 14,17

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Setaper v. Goats Cavalien, G06 US..1 CIGEED on ccc ccccvccccccccccsvcccccuccesscesesss 9

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-iii-

TABLE OF AUTHORITIES, continued

Cases Page

Tennard v. Cockrell, 284 F.3d 591 (Sth Cir. 2002), reinstated,

317 F.3d 476 (Sth Cir. 2003), rev'd, 124 'S. Ct. 2562 (2004) .... 0... cece cece 13

Tennard v. Dretke, 124 S. Ct. 2562 (2004) 2... 6c ccc cee ene wees ~.. i,1,14,15,17

Woodson v. North Carolina, 428 U.S. 280 (1976)... 6. cee eee nn nnes 8,9

Zant v. Stephens, 462 U.S. 862 (1983) 2... ccc cen eee n nee nnennes 9

Constitutions and Rules

OF, Cree ee, GEE oo cc cc cccccccccccccccccccccseccccescccsevescescsess passim

na ©. Oe | | 7

-iv-

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Petitioner LaRoyce Lathair Smith (“Smith”)' was properly convicted and sentenced

to death for the brutal murder of Jennifer Soto. In the instant petition for certiorari review

of the lower court’s denial of habeas corpus relief, Smith argues that his Eighth Amendment

rights — as defined by Penry /,* Penry II,’ and Tennard v. Dretke* — were violated by the

jury instructions and special issues submitted during the punishment phase of his 1991 trial.

Petition at 13-20. However, Smith’s claims are without merit and certiorari review should

be denied.

STATEMENT OF THE CASE

I. Facts of the Crime

The Court of Criminal Appeals of Texas set forth the evidence supporting Smith’s

capital murder conviction in its opinion on direct appeal:

Around 11:30 p.m. on January 7, 1991, [Jennifer Soto] was working as the

shift manager at a Taco Bell in Dallas County. She was responsible for closing

and cleaning the store and completing the appropriate paperwork. A co-

employee, Travis Brown, was waiting inside the restaurant for [Soto] to finish

her duties so that she could give him a ride home. Brown testified that [Smith]

arrived at the restaurant by automobile with several other youths. [Smith] and

two others then got out of the car and knocked on the door, claiming to need

to use the telephone. Brown would not let the three enter the establishment

because it was closed. He did, however, go to the back of the store and get

[Soto]. [Soto] recognized [Smith] as an ex-employee and allowed him to

enter. [Smith] then let his two colleagues into the restaurant.

Smith v. State, No. 71,333, at 1-2 (Tex. Crim. App. 1994) (unpublished opinion) (emphasis

in original).° Smith was convicted of capital murder on June 14, 1991 for murdering Soto

during the course of committing or attempting to commit robbery. CR 3, 108, 121-22.’

IL.

Brown testified at trial that [Soto] then returned to the back of the store to

finish some paperwork while [Smith] used the phone. After he hung up the

phone, [Smith] came to the front of the restaurant and told Brown to leave

because they were going to rob the Taco Bell. However, Brown professed that

he could not leave. [Smith] then went to the back office where [Soto] was

working. Shortly after that, Brown heard some “yelling” and went to check it

out. He found [Smith] “pistol-whipping” [Soto] while he had her in a

headlock. After Brown attempted to get [Smith] to stop the attack, [Smith]

stepped back and fired a shot at [Soto].° [Smith] then walked into the kitchen,

grabbed a butcher knife, and returned to the office where he stabbed [Soto]

three or four times. After this, all three perpetrators left the restaurant. Just

before exiting, [Smith] told Brown that he would kill him if he talked to the

police. However, after [Smith] left, Brown called the police.

Facts Relating to Punishment

The state court also summarized the evidence which supported the jury’s finding of

future dangerousness:

Looking at the evidence in the light most favorable to the verdict, we find the

circumstances of the offense to be rather cruel. [Smith] knew [Soto] and even

hugged her when he came into the restaurant to use the phone. However,

either in an attempt to get her to cooperate in opening the restaurant’s safe or

because of her inability to do so, he held her around the neck and hit her with

the gun until part of it broke. [Smith] then shot her in the back. Apparently

still not feeling finished with his handiwork, [Smith] went into the kitchen to

Respondent State of Texas will be referred to as “the State.

Penry v. Lynaugh, 402 U.S. 302 (1989).

, Penry v. Johnson, 532 U.S. 782 (2001).

’ 124 S. Ct. 2562 (2004).

$

Brown clarified that he didn’t think that [Smith] shot [Soto], just that he shot at her.

However, the medical examiner’s testimony revealed that [Soto] was shot once in the back.

7

The state court’s direct appeal opinion is attached to Smith’s Petition as Appendix 2.

“CR” refers to the Clerk’s Record of pleadings and documents filed with the court

during trial, followed by page numbers. “RR” refers to the Reporter’s Record of transcribed trial

proceedings, preceded by volume number and followed by page numbers.

2.

\

-_

get a butcher knife. On his return, he proceeded to stab [Soto] several times

in the neck, chest, and thigh, including several wounds which were

characterized by the State as “torture type wounds.”

The manner in which the offense was committed illustrated some degree of

forethought and deliberation on [Smith]’s part. Furthermore, he appeared to

be both the planner and the initiator of the crime. Some time before the actual

incident, [Smith] evidently had formulated a plan to rob this Taco Bell because

he “needed some money for court.” Two of his companions heard him talking

about the intended robbery over the phone, and [Smith] was later heard to ask

the driver of the car if “he was going to do that for me” (apparently referring

to the robbery considering all of the statements in context). After the driver

replied “I guess so,” the group proceeded to a house where [Smith] retrieved

another person and was seen to have a gun in his hand. The group then

proceeded to the Taco Bell. When they first arrived at the restaurant, [Smith]

and two others got out of the car, but did not enter the restaurant. They got

back into the car and began to drive away, but [Smith] encouraged the driver

to turn around and go back.

[Smith] was nineteen years old at the time of this offense, and he was shown

to have one prior conviction for misdemeanor assault.* [Smith] had also been

stopped for the offense of “pedestrian in roadway,” whereupon it was

discovered that he had outstanding traffic warrants. During a search incident

to [Smith]’s arrest on these outstanding warrants, police discovered a baggie

in [Smith]’s underwear containing ten rocks of crack cocaine.’

Appendix 2 at 3-4.

The lower court also described the mitigating evidence presented on Smith’s behalf

. The evidence indicated that this conviction began as a felony aggravated assault. The

facts show that [Smith] began seeing a girl whose boyfriend, Christopher Standmier, went off to

college after agreeing to have an open relationship. However, when the girl started seeing [Smith],

Standmier wrote her cruel letters and broke off the relationship. One day when Standmier was back

in town, [Smith] saw him and began harassing him and a fight ensued. [Smith] pulled a baseball bat

from his car and struck Standmier in the ribs and broke the bat over his head. Then [Smith] ran back

to his vehicle and pulled out a gun. Standmier backed down and [Smith] left.

[Smith] was originally charged with aggravated assault, but the charges were reduced to a

misdemeanor when Standmier got tired of taking off from school to come to court.

’ The actual weight of the cocaine measured only one-fifteenth gram.

i

during punishment:'°

First, [Smith] offered evidence of his limited mental capacity. [Smith]’s

mother testified that [Smith] was “a slow learner” in school. He had an IQ of

78 and possible organic learning disabilities. [Smith] attended special-

education classes and his behavior was often noted as “exemplary,” but he

dropped out of school in the ninth grade at the age of eighteen. He committed

this capital murder at the age of nineteen.

Second, [Smith] offered evidence of his difficult family background. His

father had been in prison for robbery, was involved with a motorcycle gang,

consorted with other women, used alcohol and drugs, and stole from his own

family. This situation upset [Smith]. Because the family did not have a lot of

money, [Smith] began looking for work as a young teenager. According to

defense witnesses, [Smith] suffered because of his father’s thefts from the

family and from a lack of money in the home.

Ex parte Smith, 132 S.W.3d 407, 413 (Tex. Crim. App. 2004)."'

Smith was then sentenced to death based on the jury’s answers to the special issues.

CR 120-23."? As the lower court explained:

Under the law in effect at the time of the trial, the jury was then given two

special issues during the punishment phase: First, was the killing deliberate?

And second, does the defendant pose a continuing danger to others? Because

this trial took place during that two-year hiatus between the Supreme Court’s

decision in Penry J and the Texas Legislature’s enactment of a new statutory

special issue in response to Penry J, the trial judge also gave the jury a non-

statutory nullification instruction. That supplemental instruction read:

= “While no psychiatric evidence was admitted, character evidence was presented by

several high school teachers and other officials, family members, the family’s reverend, and various

others ....” Appendix 2 at 5.

Appendix 1.

12

The lower court’s opinion denying habeas relief is attached to Smith’s Petition as

The punishment charge and verdict form submitted to the jury ave attached to Smith’s

Petition as Appendix 3.

-4-

\

You are instructed that you shall consider any evidence which,

in your opinion, is mitigating. Mitigating evidence is evidence

that reduces the Defendant’s personal or moral culpability or

blameworthiness, and may include, but is not limited to, any

aspect of the Defendant’s character, record, background, or

circumstances of the offense for which you have found him

guilty. Our law does not specify what may or may not be

considered as mitigating evidence. Neither does our law

provide a formula for determining how much weight, if any, a

mitigating circumstance deserves. You may hear evidence

which, in your judgment, has no relationship to any of the

Special Issues, but if you find such evidence is mitigating under

these instructions, you shall consider it in the following

instructions of the Court. You, and each of you, are the sole

judges of what evidence, if any, is mitigating and how much

weight, if any, the mitigating circumstances, if any, including

those which have no relationship to any of the Special Issues,

deserves.

In answering the Special Issues submitted to you herein, if you

believe that the State has proved beyond a reasonable doubt that

the answers to the Special Issues are “Yes,” and you also believe

from the mitigating evidence, if any, that the Defendant should

not be sentenced to death, then you shall answer at least one of

the Special Issues “No” in order to give effect to your belief that

the death penalty should not be imposed due to the mitigating

evidence presented-to you. In this regard, you are further

instructed that the State of Texas must prove beyond a

reasonable doubt that the death sentence should be imposed

despite the mitigating evidence, if any, admitted before you.

You are instructed that you may deliberate as a body about

mitigating circumstances, but you are not required to reach a

unanimous verdict as to their existence or weight. When you

vote about the Special Issues, each of you must decide for

yourself whether mitigating circumstances exist and, if so, how

much weight they deserve.

These supplemental instructions explicitly told the jury that:

It “shall” consider any and all mitigating evidence;

The mitigating evidence might, but need not, relate to the

defendant’s character, record, background, or any

circumstances of the offense;

3. Mitigating evidence is any evidence which reduces the

defendant’s personal or moral culpability or

blameworthiness;

4. Mitigating evidence need not have any relationship to

either of the Special Issues;

5. The jurors need not be unanimous about what specific

evidence each one considers mitigating;

6. The jurors each decide what evidence is mitigating and

how much weight to give it;

7. If the jury finds, from the mitigating evidence, that the

defendant should not be sentenced to death, then it

“shall” answer one of the Special Issues “No”; and

8. The State must prove, beyond a reasonable doubt, that

the death penalty should be imposed despite the

mitigating evidence.

nN —

Appendix | at 3-4 (footnotes omitted).

III. Direct Appeal and Postconviction Proceedings

Smith’s conviction and sentence were affirmed by the lower court on June 22, 1994.

Appendix 2. This Court denied certiorari review. Smith v. Texas, 514 U.S. 1112 (1995).

Smith then sought state collateral review but his application was dismissed as untimely filed

on July 15, 1998. Ex parte Smith, 977 S.W.2d 610 (Tex. Crim. App. 1998). This Court

again declined to issue a writ of certiorari. Smith v. Texas, 525 U.S. 1148 (1999). Smith next

filed a petition for postconviction relief in the United States District Court for the Northern

District of Texas, but this proceeding was ultimately dismissed without prejudice so that

Smith could return to state court pursuant to newly enacted procedures for untimely

applications. Smith v. Johnson, No. 3:98-CV-1778 (N.D. Tex. 1999); TEX. CODE CRIM.

PROC. art. 11.071, § 4A (West 1999). Smith’s second state habeas application was denied

&

on its merits on April 21, 2004. Appendix 1. The instant petition for certiorari review

followed.'?

ARGUMENT

I. The Questions Presented for Review Are Unworthy of the Court’s Attention.

The Rules of the Supreme Court provide that review on writ of certiorari is not a

matter of right, but of judicial discretion, and will be granted only for “compelling reasons.”

Sup. CT. R. 10 (West 2004). Smith advances no compelling reason in this case, and none

exists. Further, because there is no constitutional right to state habeas corpus proceedings,

it follows that the denial of state habeas relief does not present a federal question for

certiorari review. As Justice O’Connor has described the role of state habeas corpus

proceedings:

A post-conviction proceeding is not part of the criminal process itself, but is

instead a civil action designed to overturn a presumptively valid criminal

judgment. Nothing in the Constitution requires the States to provide such

proceedings ... nor does it seem to me that the Constitution requires the States

to follow any particular federal model in those proceedings.

Murray v. Giarratano, 492 U.S. 1, 13 (1989) (O’Connor, J., concurring).

Similarly, Justice Stevens has noted that:

This Court rarely grants review at this stage of the litigation even when the

application for state collateral relief is supported by arguably meritorious

federal constitutional claims. Instead, the Court usually deems federal habeas

proceedings to be the more appropriate avenues for consideration of federal

constitutional claims.

Kyles v. Whitley, 498 U.S. 931, 932 (1990) (Stevens, J., concurring). Smith’s claims are now

- On July 23, 2004, Smith obtained appointed counsel in order to pursue habeas corpus

relief once again in the federal district court. Smith v. Dretke, No. 3:04-CV-01576 (N.D. Tex.). No

petition has yet been filed, although the State has agreed to waive limitations provided that Smith

files his petition within ninety days of the disposition of the instant certiorari petition.

Te

due to be raised in federal habeas proceedings, which are currently pending. Thus, it appears

that “the more appropriate avenue” is now available for the litigation of the instant claims.

Il. The Lower Court Correctly Held That Smith’s Jury Was Not Altogether

Prevented from Considering His Mitigating Evidence of Limited Mental

Capacity and Difficult Family Background in Answering the Punishment Phase

Special Issues.

Smith contends that his jury was deprived of a vehicle with which to give mitigating

effect to his evidence of limited intelligence and troubled upbringing in violation of Penry

1. Petition at 13-14, 15-16. Smith also alleges that the lower court erred in invoking the Fifth

Circuit’s “constitutional relevance” standard, which was rejected by this Court in Tennard,

in denying habeas relief. Jd. at 14-15. However, the court below properly determined that

“the two special issues given in this case provided a sufficient vehicle for the jury to give

effect to [Smith]’s mitigating evidence of a troubled childhood and of his somewhat limited

mental ability.” Appendix | at 6. This is because “[Smith]’s mental limitations were surely

relevant to whether he acted deliberately in committing this robbery-murder and both his

learning disability and troubled background were relevant to whether he would constitute a

future danger to society.” /d. at 7-9. As a result, certiorari should be denied.

A. The special issues were constitutionally adequate vehicles for the

consideration of Smith’s mitigating evidence.

In Penry I, this Court was forced to reconcile its plurality opinions in Woodson v.

North Carolina, 428 U.S. 280, 303-04 (1976) (which requires that a capital sentencing

authority be allowed to consider mitigating circumstances), Jurek v. Texas, 428 U.S. 262, 276

(1976) (explaining that the pre-1991 Texas special issues — deliberateness and future

dangerousness — allowed Texas juries to consider mitigating circumstances), and the unique,

double-edged mitigating circumstances presented in Penry / itself (mental retardation, brain

\

damage, and severe child abuse). 492 U.S. at 320-25. The resultant decision was a carefully

crafted and, ultimately, case-specific compromise that this Court has repeatedly refused to

extend to other types of mitigating evidence.

At the root of Penry / are found the competing interests involved in capital sentencing:

the requirement for an individualized determination of moral culpability based on both

aggravating and mitigating factors, and the need to adequately guide and channel a jury’s

consideration of these factors. The Woodson line of cases first construed the Eighth

Amendment to require that a capital sentencing jury not be precluded from consideration, as

a mitigating factor, of the character and record of the individual offender, as well as the

circumstances of the particular offense. Eddings v. Oklahoma, 455 U.S. 104, 111-12 (1982);

Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion); Woodson, 428 U.S. at 303-04.

As the Court explained, “evidence about the defendant’s background and character is

relevant because of the belief, long held by this society, that defendants who commit criminal

acts that are attributable to a disadvantaged background, or to emotional and mental

problems, may be less culpable than defendants who have no such excuse.” Penry I, 492

U.S. at 319 (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J.,

concurring)). However, not all evidence presented as mitigating must be considered as such.

Franklin v. Lynaugh, 487 U.S. 164, 174 (1988) (plurality opinion); Skipper v. South

Carolina, 476 U.S. 1, 7 n. 2 (1986). Nor is it constitutionally required that consideration of

mitigating evidence be structured or balanced in any particular way. Franklin, 487 U.S. at

179; Booth v. Maryland, 482 U.S. 496, 502 (1987), overruled on other grounds, Payne v.

Tennessee, 501 U.S. 808 (1991); Zant v. Stephens, 462 U.S. 862, 875-76 (1983).

Prior to the development of the rule in Eddings, the Jurek plurality held that the Texas

special issues were constitutional because “the enumerated questions allow consideration of

-9-

particularized mitigating factors,” e.g., a defendant’s criminal record (or lack thereof), the

range of severity of such a record, his youth, the circumstances of the crime, duress and

mental or emotional disturbance, and remorse.'* 428 U.S. at 272-73. This conclusion was

reaffirmed in Lowenfield v. Phelps, 484 U.S. 231, 245 (1988), and in Franklin, 487 U.S. at

182. Thereafter, the Penry / Court held that the Texas special issues, as applied to Penry, did

not allow consideration of his specific evidence of mental retardation, brain damage, and

severe child abuse.'* 492 U.S. at 322. This was because the evidence, which suggested that

Penry was “less able ... to control his impulses or to evaluate the consequences of his

conduct,” did not necessarily suggest that his murderous actions were less than deliberate.

Id. Additionally, Penry’s evidence indicated that he was unable to “learn from his mistakes,”

and was relevant to the future dangerousness special issue only as an aggravating factor. Id.

at 323. Thus, neither special issue provided a vehicle for the jury to give mitigating effect

to Penry’s “two-edged” evidence. /d. at 324.

During its next term, however, the Court held that a mere possibility that the jury was

precluded from considering relevant mitigating evidence did not establish Eighth

Amendment error. Boyde v. California, 494 U.S. 370, 380 (1990). Rather, such error

occurred only if there was a “reasonable likelihood” that the jury applied its instructions in

” Smith fails to cite Jurek whatsoever or acknowledge that it remains controlling

authority. See Graham v. Collins, 506 U.S. 461, 474-77 (1993) (explaining that Penry / is the

exception to Jurek).

- Penry’s evidence suggested that he was mildly or moderately retarded, may have

suffered traumatic damage to his brain at birth or as a result of later injuries, and was frequently

beaten about the head and locked in his room as a child. Penry J, 492 U.S. at 307-09. The Court

specifically noted that its Penry / opinion did not negate the facial validity of the Texas special

issues, nor did it change the fact that other types of mitigating evidence could be considered under

the plain language of the special issues. /d. at 315-19.

-10-

a way that prevented the consideration of such evidence. /d. The Court further limited its

holding in Saffle v. Parks, 494 U.S. 484 (1990), applying Teague'* to preclude relief where

there was no indication that the jury was “aliogether prevented’ from giving some effect to

the evidence. /d. at 490-92. Indeed, the Court would continue to endorse Jurek and limit the

application of Penry / where the mitigating evidence presented was not solely aggravating

when viewed through the lens of the special issues.

For example, in Graham, the Court imposed a Teague bar and declined to “read Penry

[/] to effect a sea change in the Court’s view of the constitutionality of the ... Texas death

penalty statute.” 506 U.S. at 474. Instead, the Court distinguished the thrust of Graham’s

mitigating evidence — “that his brief spasm of criminal activity ... was properly viewed, in

light of his youth, his background, and his character, as an aberration that was not likely to

be repeated” — from Penry’s. /d. at 475. The “mitigating significance” of Graham’s

evidence did not compel affirmative answers to the special issues as did Penry’s evidence,

but instead suggested that Graham would not be a future danger. Jd. at 475-76. Thus, as in

Boyde, the possibility that mitigating evidence might have “some arguable relevance beyond

the special issues” was immaterial as long as the jury was able to give effect to the evidence

in some meaningful way. /d. at 476 (emphasis in original).

The same term, the Court reconsidered a Graham-type challenge to the special issues

on direct appeal, where it was not bound by Teague. Johnson v. Texas, 509 U.S. 350, 352

(1993). In Johnson, the Court again concluded that “[i}t strains credulity to suppose that the

“ Teague v. Lane, 489 U.S. 288 (1989). The Court had previously found that

Teague did not bar the relief sought in Penry |, because Penry merely requested vindication of his

Eighth Amendment rights under Eddings as required by the evidence presented “in his particular

case.” Penry I, 492 US. at 318-19 (emphasis in original). This holding unequivocally did “not

“umpos|e] a new obligation’ on the State of Texas.” /d at 319 (quoting Teague, 489 U.S. at 301).

-l1-

jury would have viewed the evidence of [Johnson]’s youth as outside its effective reach in

answering the [future dangerousness] special issue.” /d. at 368. This is the case even if the

mitigating evidence could also be viewed as aggravating; constitutional error results only if

the evidence is unavoidably aggravating within the context of the special issues. /d. at 368-

69. As in Graham and Johnson, there was no reasonable likelihood that Smith’s jury was

prevented from giving effect to his mitigating evidence when answering the special issues.

As summarized supra, Smith’s mitigating evidence consisted entirely of lay testimony

regarding his troubled childhood and limited mental ability. This evidence was within the

effective reach of the jury. Unlike in Penry I, Smith did not present evidence of any mental

impairment or childhood trauma that would tend to diminish his impulse control or ability

to evaluate the consequences of his mistakes. Contrary to Smith’s conclusory argument, the

evidence was not solely aggravating and did not “undercut the jury’s ability to truthfully

answer the special issues so as to produce a sentence less than death.” Petition at 13-14.

Instead, Smith’s “evidence shows the reverse: despite [his] limitations and difficulties, his

behavior in school was often ‘exemplary.””'’ Appendix | at 8. Thus, the jury could have

given effect to Smith’s mitigating evidence by answering the future dangerousness special

issue negatively. Indeed, this Court has repeatedly held that similar evidence was within the

scope of the special issues. See, e.g., Johnson, 509 U.S. at 356; Graham, 506 U.S. at 463;

Franklin, 487 U.S. at 168; Jurek, 428 U.S. at 266-67. As a result, certiorari should be

denied.

- Smith argued during punishment that he was a candidate for rehabilitation and that

he would prosper in “a controlled environment” such as prison. 33 RR 45-46, 53-54, 66-69. Smith

also pointed out the fact that he had no disciplinary incidents during the six months he was

incarcerated awaiting trial. /d at 53-55.

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B. This Court’s opinion in Tennard did not impugn the lower court’s

application of Penry I.

In Tennard, the petitioner presented evidence during the punishment phase of trial that

he had an IQ score of 67 and that his low IQ and gullible nature mitigated his culpability.

124 S. Ct. at 2566. During federal habeas proceedings, Tennard argued that Penry / error

occurred because the jury was unable to give effect to this evidence in answering the

deliberateness and future dangerousness special issues. Tennard v. Cockrell, 284 F.3d 591,

595 (Sth Cir. 2002), reinstated, 317 F.3d 476 (Sth Cir. 2003), rev'd, 124 S. Ct. 2562 (2004).

In adjudicating the claim, the Fifth Circuit cited its well known two-part test, which sought

to determine (1) whether the mitigating evidence introduced at trial was “constitutionally

relevant,””'®

and (2) whether the evidence was beyond the effective reach of the jury in

answering the special issues. /d. (citing Davis v. Scott, 51 F.3d 457, 460 (Sth Cir. 1995),

abrogated by Tennard, 124 S. Ct. at 2569-72). The court of appeals then rejected Tennard’s

Penry I claim because his IQ score evidence did not satisfy the threshold constitutional

relevance standard, i.e., it was not evidence of a severe handicap that was causally connected

to the crime. /d. at 596-97 (citing Boyd v. Johnson, 167 F.3d 907, 912 (Sth Cir. 1999),

Lackey v. Scott, 28 F.3d 486, 489-90 (Sth Cir.1994), and Andrews » Collins, 21 F.3d 612,

629-30 (Sth Cir.1994)). The Fifth Circuit did not reach the second stage of the Davis

analysis.

This Court reversed, holding that the Fifth Circuit’s constitutional! relevance test was

an “improper legal standard” with “no basis in [Supreme Court] precedents,” and the correct

The court of appeals explained that, “[t]o be constitutionally relevant, the evidence

must show (1) a uniquely severe permanent handicap with which the defendant was burdened

through no fault of his own, ... and (2) that the criminal act was attributable to this severe permanent

condition.” Tennard v. Cockrell, 284 F.3d at 595 (internal quotations omitted).

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_ ee ee

2

standard to be applied was on/y whether the evidence was within the effective reach of the

jury in answering the special issues. Tennard, 124 S. Ct. at 2569-72. Because the Fifth

Circuit had not considered this question, and reasonable jurists might disagree as to the

outcome, the Court granted a certificate of appealability and remanded for further review.

Id. at 2572-73. The Court also determined that “reasonable jurist{s] could conclude that the

jury might well have given Tennard’s low IQ evidence aggravating effect in considering his

future dangerousness, not only as a matter of probable inference from the evidence but also

because the prosecutor told them to do so.” Id. at 2572 (emphasis added). However, the

Court did not hold that Tennard’s jury necessarily gave the evidence only aggravating effect

and, thus, did not actually find Penry / error.

In resolving Smith’s claim, the lower court adopted and applied the Fifth Circuit’s

constitutional relevance analysis.'? Appendix | at 6-7. However, the court also addressed

the proper issue identified in Tennard: whether Smith’s mitigating evidence was within the

effective reach of the jury in answering the special issues. /d. at 6-9. The court below

recognized Penry / as the controlling precedent and compared Smith’s mitigating evidence

to Penry’s.”° /d. at 5-6. The court then specifically addressed how this evidence was relevant

to the special issues in a mitigating way. Id. at 7-8. The court below did not “screen out any

positive aspect” of Smith’s mitigating evidence before conducting its Penry / analysis, as the

Fifth Circuit erroneously did in Tennard. 124 S. Ct. at 2570-71. Thus, the court did not

aa It should be noted that the Court of Criminal Appeals adopted a four-part restatement

of the constitutional relevance analysis. Appendix | at 7 (citing Robertson v. Cockrell, 325 F.3d 243

(Sth Cir.) (en banc), cert. denied, 124 S. Ct. 28 (2003)). This revised standard — addressing

voluntariness, permanence, severity, and attribution — was first articulated by the en banc Fifth

Circuit in 2003 and was not at issue in Tennard.

- The court also noted that the evidence supporting Smith’s Penry / claim was more

like the evidence in Robertson than the evidence in Tennard. Smith, 132 S.W.3d at 413 0.19.

-14-

resolve Smith’s claim under an improper legal standard because it applied the proper

standard in the alternative. Nevertheless, the holding of Tennard, i.e., reasonable jurists

would debate the application of Penry / to the facts of Tennard’s case, is immaterial here,

where the debatability of the lower court’s conclusion is not at issue. 124 S. Ct. at 2573

(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Finally, Tennard is distinguishable

because the prosecutor in the instant case did not argue that Smith’s troubled family history

or intellectual limitations were irrelevant or would make him more dangerous. Cf id. at

2572-73; 33 RR 17-33, 70-84. Consequently, Tennard is inapposite to the instant case, and

certiorari should be denied.

Ill. The Court below Properly Held That the Mere Submission of a Supplemental

Instruction Concerning Mitigating Evidence Does Not Amount to per se Eighth

Amendment Error Regardless of the Quality or Quantity of the Mitigating

Evidence Presented at Trial.

In Penry II, this Court granted certiorari in order to decide whether the supplemental

instruction given during Penry’s retrial — an instruction similar to the one at issue here —

“complied with [the Court’s] mandate in Penry /.” Penry II, 532 U.S. at 786. The Court first

reiterated its holding in Penry / — that the mitigating evidence presented at Penry’s 1980

trial was “relevant only as an aggravating factor” to the special issues — and explained that

Penry was retried in 1990, where “the defense again put on extensive evidence regarding

Penry’s mental impairments and childhood abuse.” /d at 787-88. The Court then considered

whether the Texas court had “unreasonably applied” Penry / by its endorsement of the

supplemental instruction. /d. at 796-804.

The Court recognized “two possible ways” to interpret the supplemental instruction:

First, ... it can be understood as telling the jurors to take Penry’s mitigating

evidence into account in determining their truthful answers to each special

issue. Viewed in this light, however, the supplemental instruction placed the

-15-

jury in no better position than was the jury in Penry 1. As we made clear in

Penry I, none of the special issues is broad enough to provide a vehicle for the

jury to give mitigating effect to the evidence of Penry's mental retardation and

childhood abuse. \n the words of Judge Dennis below, the jury’s ability to

consider and give effect to Penry’s mitigating evidence was still “shackled and

confined within the scope of the three special issues. Thus, because the

supplemental instruction had no practical effect, the jury instructions at

Penry’s second sentencing were not meaningfully different from the ones we

found constitutionally inadequate in Penry 1.

Alternatively, ... it is possible to understand the supplemental instruction as

informing the jury that it could “simply answer one of the special issues ‘no’

if it believed that mitigating circumstances made a life sentence ... appropriate

... regardless of its initial answers to the questions.”

Penry II, 532 U.S. at 798 (emphasis added, internal citations omitted).

While the first interpretation effected no change, the second rendered the jury charge

“internally contradictory” because the jury was also instructed that a “yes” answer to a

special issue was appropriate only where supported by evidence proved beyond a reasonable

doubt and a “no” answer was called for only when there was a reasonable doubt. Penry II,

532 U.S. at 799. The supplemental instruction directed the jury to “change one or more

truthful ‘yes’ answers to an untruthful ‘no’ answer in order to avoid a death sentence.” /d.

The Court reasoned:

Here, ... it would have been both logically and ethically impossible for a juror

to follow [the] instructions. Because Penry’s mitigating evidence did not fit

within the scope of the special issues, answeiing those issues in the manner

prescribed on the verdict form necessarily meant ignoring the command of the

supplemental instruction. And answering the special issues in the mode

prescribed by the supplemental instruction necessarily meant ignoring the

verdict form instructions. Indeed, jurors who wanted to answer one of the

special issues falsely to give effect to the mitigating evidence would have had

to violate their oath to render a “true verdict.”

Id. at 799-800 (emphasis added, internal citations omitted). This mechanism created “a

-16-

reasonable likelihood that the jury applied the challenged instruction in a way that prevented

the consideration of Penry’s mental retardation and childhood abuse.” /d. at 800 (internal

quotations omitted).

Thus, neither of the two possible views of the supplemental instruction cured the error

recognized in Penry /. The first left the jury in same position as before, with no way to give

effect to mitigating evidence that was only relevant to the special issues in an aggravating

way. Conversely, the second advised the jury to render a false verdict because Penry’s

evidence was not relevant to the special issues in any mitigating way. However, both

arguments rest on the same foundation: that Penry’s evidence of mental retardation, brain

damage, and severe child abuse was beyond the scope of the special issues. In essence, the

supplemental instruction did not create new error; rather, the instruction simply failed to

correct the error identified in Penry / because, during Penry’s retrial, the jury was again

faced with mitigating evidence that compelled affirmative answers to the special issues and

created a likelihood that the jury was unable to ethically assess a life sentence if it so chose.

It follows that evidence with some mitigating relevance to the special issues, even if

it were also aggravating, would not result in Penry // error because the jury’s “no” answers

would not be false. Rather, the jury would remain “shackled and confined” within the scope

of the special issues, and its negative answers would reflect a legitimate, reasonable doubt

regarding the State’s evidence, as before. See Robertson, 325 F.3d at 258 (where the

“culpability-mitigating evidence is encompassed by the Texas special issues, there is no need

to provide an additional vehicle for it”), abrogated on other grounds by Tennard, 124 S. Ct.

at 2569-72. As in Robertson, “(t}he jury was not forced into the position — as they were in

Penry I] — of falsely answering “no” to the questions of deliberateness or future

dangerousness. The most that one could say is that the supplemental instruction was

At

\ A i p.

redundant.”*' Jd. Thus, there can be no per se error as a result of the supplemental

instruction.” Moreover, Penry I] continued the case-specific analysis mandated in the

Court’s opinions discussed supra. Indeed, there is no way of determining the likelihood of

Penry I error without examining the nature of the mitigating evidence presented. As the

Court explained in Boyde, “[j jurors do not sit in solitary isolation booths parsing instructions

for subtle shades of meaning in the same way that lawyers might.” 494 U.S. at 380-81. In

Smith’s case, because the mitigating evidence presented was not beyond the scope of the

special issues, and there was no reasonable likelihood that the jury was precluded from

truthfully answering the special issues in order to give it effect, neither interpretation of the

supplemental instruction could result in constitutional error.

- In any event, the supplemental instruction submitted in this case was dissimilar to the

one submitted in Penry I] because the jury was explicitly told that it was obligated to consider any

mitigating evidence that might reduce Smith’s personal or moral culpability or blameworthiness even

if it was unrelated to the speciai issues. Appendix | at 9-10. Further, the instruction required the

jury to equate diminished culpability with reasonable doubt and, thus, to truthfully answer the special

issues negatively in order to reflect such a reasonable doubt. /d. at 9-10 & n.33. As a result, the

supplemental instruction “provided ‘a more capacious vehicle than was constitutionally warranted”

because “it explicitly put a burden on the State to prove, beyond a reasonable doubt, that the death

penalty should be imposed despite any mitigating evidence.” /d. (quoting Robertson, 325 F.3d at

258).

as In fact, given the Court’s reluctance to extend Penry / beyond its facts in light of

Teague, the conclusion that the supplemental instruction created per se error would be Teague-

barred. See Robertson, 325 F.3d at 255 (holding that, “[t}hough one might argue ... that Penry //

silently modifies Penry / and encroaches upon Jurek, such an act is expressly forbidden by Teague”).

Although Teague does not directly apply to the instant proceeding, the State’s interest in finality

nonetheless outweighs Smith’ s interest in the retroactive application of any new rule of constitutional

law.

-18-

For the foregoing reasons, Smith’s petition for writ of certiorari should be denied.

*Counsel of Record

a...

CONCLUSION

Respectfully submitted,

GREG ABBOTT

Attorney General of Texas

BARRY R. McBEE

First Assistant Attorney General

DON CLEMMER

Deputy Attorney General

For Criminal Justice

GENA BUNN

Chief, Postconviction

Litigation Division

*EDWARD L./MARSHALL *

Deputy Chief, Postconviction

Litigation Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Tel: (512) 936-1400

Fax: (512) 320-8132

Email: elm@oag. state. tx.us

ATTORNEYS FOR RESPONDENT

-19-

No. 04-5323

IN THE

SUPREME COURT OF THE UNITED STATES

LAROYCE LATHAIR SMITH,

Petitioner,

Vv.

STATE OF TEXAS,

Respondent.

RECE.VeD

On Petition for Writ of Certiorari to the :

Court of Criminal Appeals of Texas SEP 15 2004

OFS LF DE IIT Eee i

| SuPREME CSS

_ ————_ tt

PROOF OF SERVICE

I hereby certify that on the 10th day of September, 2004, one copy of Respondent’s

Brief in Opposition was mailed, postage prepaid, to Jordan Steiker, Attorney at Law, 727

East Dean Keeton Street, Austin, Texas, 78705. All parties required to be served have been

served. I am a member of the Bar of this Court.

EDWARD L. HALL /

Deputy Chief, Postconviction Litigation Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 936-1400

ATTORNEY FOR RESPONDENT

ATTORN™y GENERAL OF TEXAS

3REG ABBOTT

September 10, 2004

The Honorable William K. Suter

Clerk, United States Supreme Court ‘

Office of the Clerk RECE.VEC

] First Street, N.E. oie is

Washington, D.C. 20543 | SsP i. 2004

' OF “OF OF Y SE CLERA

Re: Smith v. Texas, No. 04-5323 | SUPREME CUR US 4

-~

Dear Mr. Suter:

Enclosed for filing with the papers in the above styled cause are the original and nine copies of

Respondent's Brief in Opposition. Also enclosed is the Proof of Service Form. Please indicate

the date of filing on the enclosed copy of this letter and return it to me in the post-paid envelope

provided.

By copy of this letter, | am forwarding a copy of said brief to counsel for Petitioner.

Thank you for your kind assistance in this matter.

Yours truly,

EDWARD L. HALL

Deputy Chief, Postconviction Litigation Division

(512) 936-1400

ELM/skw

Enclosures

Cc: Jordan Steiker

Attorney at Law

727 East Dean Keeton Street

Austin, Texas 78705

Post OFFICE Box 12548, AUSTIN , TEXAS 78711-2548 TEL : (512)463-2100 WWW .OAG STATE .TX.US

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